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Woodshed
LEGAL SESSION
by Alan Bergman
Publishing
Conundrum:
To Keep
or Not to
Keep Your
Rights
©
©
BILL PIERCE
Do you have a legal question that you’d like
Alan Bergman to answer in DownBeat
E-mail it to him at legalsession@downbeat.com!
Music publishing is the best part of the business.
Once you have established a copyright, income
from recordings, performances, print sales,
international exploitation, commercials, film
uses and digital sales all flow in without going
on the road or into the studio. Herbie Hancock
and Wayne Shorter’s compositions will generate
significant income long after their records
have stopped selling.
Despite low sales and radio airplay, jazz is
everywhere—in films, TV background and
theme music, commercials, and live performances.
Jazz videos and DVDs are released
every day, as are re-releases of classic records in
all sorts of new packages and configurations.
All this will be repeated and expanded via digital
delivery, in video games and even cell phone
ringtones. Billy Taylor, Hancock, Ron Carter
and Bob James all have had major commercials
using their music.
If publishing rights to original compositions
can be such a substantial and continuing asset,
why do composers assign publishing rights to
traditional publishers
First, there is a long history of successful
exploitation of jazz by publishers. Although
Thelonious Monk’s family has for the most part
been able to retain rights to this valuable catalog,
perhaps the most famous Monk composition,
“’Round Midnight,” has been published
from the beginning by the Warner Publishing
companies, which added a lyric that helped
broaden the popularity of this classic. “Autumn
Leaves” took on a whole new earnings life
when the publisher convinced Johnny Mercer to
write his memorable lyrics to what was then a
French instrumental. And no one can fault the
success major publishing companies have had
with the catalogs of Duke Ellington and Fats
Waller. Ellington often acknowledged that the
money he received from his publishers was
essential in supporting his band.
Another consideration for an artist to assign
his or her publishing rights to a publisher is that
sometimes a publisher pays an advance to
acquire a copyright. A story exists (probably not
true) about Waller selling “Ain’t Misbehavin’”
to three different publishers in the same day.
Also, even if you assign the copyright to a
publisher, the writer remains entitled to a 50
percent writer’s share. At one point, the No. 1
earner at ASCAP was Mercer, who wrote
almost exclusively for Hollywood and owned
no publishing rights to his most successful
songs. Recently, the publisher will even agree
to a co-publishing arrangement so that not only
does the writer get the 50 percent writer’s
share, but also 50 percent of the publisher’s
share, which means the writer gets 75 percent
of total income. That’s been the norm in the
pop world for decades, but it can be done in
other genres when the composer has enough
bargaining power.
Sometimes a record company will demand
publishing rights. Of course, throughout the
sometimes sordid early history of jazz in the
record business (and in other genres as well)
many important copyrights wound up in publishing
companies owned by labels. Record
companies have received a “back door” interest
in publishing through the Controlled
Compositions Clause in a recording contract,
which requires that the artist/composer license
his compositions to the label for 75 percent of
the otherwise applicable statutory copyright royalty.
This in effect saves the label 25 percent of
the mechanical royalty it would otherwise have
to pay the publisher, thus making the label a de
facto co-publisher at least as far as that label’s
record sales are concerned.
This language continues in present-day contracts,
and usually only major pop artists with
tremendous bargaining power can avoid it. As
onerous as this language appears, at least the
record company doesn’t acquire an interest in
the copyright itself, as was done in the early
days of the business. My feeling is that when it
comes to jazz, considering the functions a traditional
music publisher normally performs, a jazz
composer should retain the rights to his or her
compositions.
The primary job of a publisher—to get the
first recording—is usually done by the composer,
who as the artist records his original composition.
Subsequent recordings usually are by
other musicians who have heard and enjoyed
an album. It’s hard to imagine a song-plugger—a
song salesman—pitching jazz standards
such as “Solar” or “Straight, No Chaser.”
However, many mainstream jazz albums feature
at least one Monk or Miles Davis tune,
even though a song-plugger didn’t pitch these
compositions to artists or producers.
Publisher advocates might claim that one
strength of multinational publishers is their affiliates
outside the United States. But in recent
years, attorneys and managers representing jazz
composers with catalogs of recorded compositions
have made subpublishing deals—contractual
arrangements with publishers in other countries,
which often are the foreign affiliates of a
major U.S. publisher. Subpublishers acquire
rights for a limited term, usually three to five
years. They often pay advances and they get no
ownership. They register the catalogs with their
local societies, collect all income and remit 75
percent or 80 percent to the original publisher.
108 DOWNBEAT June 2009